As the U.S. Supreme Court embarks on a new term, Justice Samuel Alito is feeling angry and hurt. The hallowed institution on which he has served since 2006 is experiencing a crisis of legitimacy not seen since the early 1930s.
The truth is—and always has been—that the court is political. It just practices politics by other means.
The legitimacy crisis is reflected in fresh opinion polling that shows public approval of the court plunging to record lows. It has been driven by a series of rightwing rulings the court has handed down on a host of critical issues, ranging from voting rights and gerrymandering to union organizing, campaign finance and, most recently, abortion. And with conservatives enjoying a solid 6-3 advantage on the high tribunal, the crisis will likely only get worse.
Never one to nuance his extremist views, Alito put his anxieties on full display during an extraordinarily vituperative hour-long speech given on September 30 at Notre Dame University. The speech dealt with media coverage of the so-called shadow docket, and was live-streamed by the university’s Kellogg Institute of International Studies.
The “shadow docket” is a term used by academics and journalists to describe cases decided in secrecy on an expedited basis without the benefit of oral argument or full briefing. Although the court has a long history of issuing expedited decisions, such cases proliferated during the Trump presidency, and the trend is continuing in the Biden era. The court’s infamous 5-4 ruling released just before midnight on September 1, in which it declined to block Texas’s new draconian anti-abortion law, is but one of many examples.
Alito explained that he prefers the term “emergency docket” and offered a spirited defense of the court’s work and practices. From there, however, his speech degenerated into a full-throated attack on the press.
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Justices of the U.S. Supreme Court
Sounding at times almost as unhinged as Fox News personality Judge Jeanine Pirro, Alito blasted the media and unnamed political actors for portraying the court’s conservative majority as “a dangerous cabal that resorts to sneaky and improper methods to get its ways,” and for feeding “unprecedented efforts to intimidate the court or damage it as an independent institution.”
Alito is easily the most insulting, outspoken, and nastiest Supreme Court Justice. Who can forget him sneering during Obama’s 2010 State of the Union address, mouthing the words “not true” as the President decried the court’s Citizens United opinion and the impact it would have on future elections? Since then, Alito has been a featured speaker at Federalist Society events, railing against the legalization of gay marriage, labeling the Second Amendment and religious liberty as “unfavored” constitutional rights, and condemning liberals as a threat to civil liberties.
But Alito is by no means the only Justice concerned about the court’s dismal public approval ratings and its mounting legitimacy crisis.
In a September 12 lecture at the University of Louisville’s McConnell Center (named after Senate Republican leader Mitch McConnell), Justice Amy Coney Barrett defended the court against charges of bias, insisting that the bench isn’t “comprised of a bunch of partisan hacks.” Barrett said she decides cases based on her “originalist” judicial philosophy, not her personal beliefs. Other justices, she claimed, similarly decide cases based on their “judicial philosophies,” not their party affiliations.
Barrett was introduced at the lecture by McConnell himself, the master political manipulator responsible for strong-arming her speedy confirmation by the Senate following the death of Justice Ruth Bader Ginsburg. Neither Barrett nor McConnell appeared to appreciate either the irony or hypocrisy of their joint on-stage moment.
In addition to Alito and Barrett, Justices Clarence Thomas and Stephen Breyer have both spoken out over the past month, seeking to salvage the court’s image.
Although they have different temperaments and embrace different jurisprudential theories, the Justices bemoaning the court’s loss of legitimacy share a common fault: They either believe or want the rest of us to believe that the Supreme Court isn’t political.
The public is, at long last, seeing through the rhetorical fog. The truth is—and always has been—that the court is political. It just practices politics by other means.
The appointment of federal judges is an overtly political process. Throughout U.S. history, from John Adams onward, Presidents have nominated judges to advance their political agendas.
With the help of McConnell and Senate Republicans, and despite heated but ineffectual opposition from Democrats, Donald Trump placed three doctrinaire right wingers—Barrett, Neil Gorsuch, and Brett Kavanaugh—on the most powerful judicial body in the land.
The Trump appointees may have rejected the former President’s legal challenges to the 2020 election, but those challenges were entirely without merit. Now, together with Alito and Thomas and to a lesser extent Chief Justice John Roberts (a bedrock conservative finding himself in the middle of a panel that has shifted to the extreme right), they are poised to drive U.S. law exponentially backwards.
This term, the Justices will have the opportunity to go beyond their shadow-docket ruling on the Texas abortion statute and overturn Roe v. Wade outright in a case from Mississippi (Dobbs v. Women’s Health Organization). They will also have the opportunity to reinterpret the Second Amendment to encompass the right to carry concealed firearms outside the home in a case from New York (New York State Rifle & Pistol Assn. v. Bruen).
It’s always possible that the court’s conservatives will tilt in favor of some degree of moderation in the new term. But don’t count on it.
“There is going to be a lot of disappointment in the law, a huge amount,” Justice Sonia Sotomayor, the de facto leader and most candid member of the court’s dwindling liberal contingent, told a group of law students at an event hosted by the American Bar Association on September 29. “Look at me, look at my dissents,” she said.
The Supreme Court’s current crisis of legitimacy is indeed a crisis of its own making.
Editor's note: This story was updated to reflect the way in which Notre Dame publicized the event with Justice Alito.